Todays discussion is defender in chief Donald Trumps fight for president ial power. Thanks for joining us today. S. Im one of the oldest people on staff talking about a book, without the relationships i have asked aei. Lets jump into the book. You summarize the overall argument of the book that donald trump, quote, has returned to the frames original vision of the presidency, and office of unity, vigor and independence in securing the benefits of an energetic executive, trump may have done the nation his greatest service. Elaborate on that and describe the argument of the book. Guest that is great writing. I should have taken a third of the words out of that. One long sentence. A fair summary of the book. When trump ran for president i was wary of him. He wasnt my first pick for president and one reason i was wary of him is he is a populist in the constitution fears populists. Think about populism, fdr, Andrew Jackson and even abraham lincoln, people think they have popular will behind them in the constitution is often seen as an obstacle and so you would have thought donald trump would come into office and find the constitution a hindrance, an obstacle to what he wanted to do but instead the last 3 and a half, four years what i have seen is it is his opponents who wants to up and and change constitutional tradition and institution, his opponents wants to get rid of the elect oral college. His opponents want to pack the Supreme Court from 9 to 16 members which would be terrible for Judicial Independence and rule of law, support the idea of using special counsel and prosecutors to fight partisan political battles or support the idea of an independent bureaucracy like the fbi and gym comey who can decide who fits the office, not the voters or nationalize the economy and create a big Green New Deal in the service of Global Warming. Also trump is a surprising defender of the constitution because he turned out to be descending more often than fighting with traditional constitutional understandings, our institution, not to say he has changed the norms and politics of the office of the president. When it comes to constitutional powers he has not been the great destroyer of the constitution which he has been accused by his critics. Host in the opening chapter you talk to the conflict between donald trump and his critics, some of his opponents, begin with his election and the nature of electoral council. Chapter 2 you describe the president s duty to faithfully execute and what that means for Donald Trumps relationship with Law Enforcement, the case of his conflict with james comey. Guest the founders thought the two most important functions of the presidency, protecting the country, National Security and enforcing the law, wanted the president to be independence, the very definition of tier any. They understand the mueller investigation, almost a revolt of Law Enforcement bureaucracy. Used to be part of it in the bush administration, you had this revolt in the Headquarters Staff and gym comey against the elected leadership of the country and the person the American People chose to be in charge of Law Enforcement, the constitution said the president takes care, the laws are faithfully executed, donald trump has the right to fire not just gym comey that anyone involved in Law Enforcement, all these people are assistants to the president in performing his constitutional responsibility to take care the laws are faithfully executed. Rather than seeing a constitutional disaster in trump firing comey, the president restoring traditional executive control of Law Enforcement through power to remove anybody involved with prosecution or investigation because they are people who help the president in achieving that duty. Host the sort of issue Justice Scalia grappled with in his famous dissenter he said those who think the president shouldnt be in full control of Law Enforcement the only thing worse than that would be the president not having full control and having something as important as the prosecutorial power or Law Enforcement power, that are not accountable to the people. The independent counsel, he says sometimes a wolf comes in sheeps clothing but this time the wolf is described as a wolf. The bigger issue of political figure which a lot of people are interested in is the independent counsel represents the pinnacle of the idea of the Administrative State. This is Woodrow Wilsons idea, Teddy Roosevelts idea, really interested in these issues, Public Policy questions were not about politics, but scientific, managerial issues, even prosecution is up to the experts so you should create special counsels insulated and protected from politics so they can do professional jobs, expert functions. If the founders. And that president is in charge of Law Enforcement and we hold him responsible or her accountable at the next election. I want to tell the audience if you have questions you want to submit for the q and a portion you can send them in two ways, submit your questions on twitter, hashtag defender in chief or send them by email to the Program Director for department of social, cultural, constitutional studies. On the point you were just elaborating on political accountability of the president and the tension between that accountability and technical expertise, that is a theme that runs not just through your first chapter discussion on Law Enforcement but broader questions of bureaucracy and the president , conflict with the state department and conflicts with the National Intelligence apparatus of the country and so on not just limited to Law Enforcement but a broader challenge, the president and the bureaucracy that he is expected to lead. These are questions we are both interested in that expresses not just trump fighting to win his battles every day but express conflict between two Different Missions of government. Trump is trying to turn us back, may not realize he is doing it unconsciously doing it, but his own selfinterest causes him to bring us back to that more spartan limited idea the founders had the branches would be separate, they would cooperate all the time but constantly be fighting. That is how individual liberty results. This other vision, this profession vision of cooperation between the branches, why cant they get over, creating Administrative State which will be filled with permanent bureaucrats, constantly create new laws and adjudicating constantly growing and activating and government. Trump interestingly, pursuing his he saved his political hide. They try to channel the rational selfinterest. They were fighting each other, they counter ambition in the interest of the man. And the survivors struggle, and that is left without government, i dont know trump knows he is doing it, by channeling selfinterest. Part of the book is no president is supposed to be necessarily a constitutional scholar. I hope not. The last one we had was woodrow wilson. Host a president exercising in office and his ambition channels through that office and attached to the office the same way the ambitions say members of Congress Channel to their office, they will duke it out so to speak, politics and these institutional values. And they were in the constitution. And with a needle and maximum space reach president to move forward after an election and reversed policies of the previous administration. You write about that and we have both written a little bit about ways that bumped against the courts in this administration. Tell us up about the power. The stuff we found on this topic, tried to explain one of the limitations of the presidency but also the president s powers, we dont really think of it that way. Supreme court once positions were reversed were reversed by other Supreme Court decisions. How does a president change policy . The president reverses what the last president did the same way by executive order or firing when you look the formal powers of the president a lot of them have to do with focusing on what the last president did. Trump really likes to use those powers, his favorite tagline is you are fired. It is a reversal of a joint decision by the president of the senate who shall hold in office. He has terminated treaties, pulled us out of the iran deal, the paris Global Warming accord, pulling us out of becoming obsolete, bilateral arms control treaties, you could say trumps almost favorite executive power is pardoning, would have been an obvious aspect of executive power, the Supreme Court three weeks ago in the daca decision, the president doesnt have this immediate reversal power, it is a good idea. The constitution says Immigration Law is under the control of congress. Congress has not created a category for the dreamers or their parents, a person has a power to end the duty to faithfully execute. President obamas is under the daca program by not enforcing Immigration Laws, 2 to 6 million people. Donald trump on taking office, start enforcing those laws, what is remarkable i think, the Supreme Court, do you have to follow the administrative procedure act, 1 to 4 years to use, obamas decision even though president obama didnt use the administrative procedure act, using discretion, one thing i have been asking that i started in 2012, the power of not enforcement is true if the Supreme Court believes what it says. Think of what donald trump can do. Donald trump could radically change Immigration Law, i will not enforce Immigration Laws against Computer Science or mathematics from American University use. And american businesses, create his own daca program. Search for a place children and parents have children with stem degrees or assets or skills, i dont see why there should be a special constitutional law of president ial power that limits trump, the Supreme Court finding a completely rule the benefits other president s. Host your arguments comes back to the take care clause of the constitution. You wrote the book, you wrote it with an eye to that case and you said it cannot be the case the courts can force a president , in your book, cannot be the case the courts can force a president to enforce a policy he believes to be and in fact is unconstitutional. It is ultimately an argument for president ial duty and valor. Guest that is the bigger issue behind the daca issue, with the Roberts Court, it knows best what the constitution means, superior to that of the president or congress, but came as a shock to the founders when looking at the beginnings of the country. The president and congress resolve major constitutional issues in the beginning. If you think of the result of daca, immediately says that is unconstitutional, he is right about that, he should be able to say i am not going to enforce this constitutional policy. And you see what has happened, the Supreme Court ordered donald trump to keep enforcing unconstitutional policy, lower courts dont have unconstitutional too. Another example of this seizure from political branches, their right to interpret the constitution but it is not a partisan thing or liberal thing, all the justices love to do this. Host i wrote a little about this, in national review, this particular seem the consequence of administrative procedure act which in and of itself broad overlay on executive power raising challenging questions about the extent to which congress can legislate procedures upon the president or the courts can enforce those legislative procedures but describing a conflict between the Trump Administration and the Roberts Court brings me to an earlier point talking about the branches of having ambition, how should these moments play out when an ambitious president is bumping up against what may be an ambitious course of a sort . Guest this is something that divides trump from his critics, critics would say the answer is at 60 justices to the court if we dont like what it is doing which would undermine Judicial Independence and rule of law and the proposal that has been rejected in the past when fdr tried to pack the court to accept the new deal. Causing the court to switch course. What donald trump has been doing, a judicial approach which is gradually trying to change the direction of the court by putting new judges on, lets expand the Supreme Court to 11 or 12 people, replace the vacancies that occurred in this presidency with no jurisdiction, brett kavanaugh, takes people who are conservative and shared his judicial ideology, a remarkable thing, donald trump is the first to issue a list of names and say i will delegate the power to come up with the list 2 wellknown conservative groups like the Heritage Foundation and federalist society. Dont know how we got shut out of that. Trumpeted that all publicly because he wanted to show a commitment to judicial ideology of a certain kind. No traffic on judges but still filled the lower courts, sometimes that goes unnoticed by the American People. He filled the lower courts with a lot of noncommitted originalists, very aggressive action publicly wellknown in their communities, lawyers and judges share a commitment to interpreting constitution based on its original understanding so trump has had conflicts with the courts but hasnt tried to do anything radical, he has followed was president s and at least nixon if not before, a gradual change in personnel, congress and the senate can oppose him, dont have to confirm any of these nominees if they dont want to but trump had the in a federal for a republican senate. Host this is a point you go on in detail the way donald trump has a long legacy both in the judges he has appointed especially because a lot of them are very very young and also the legacy of transforming Supreme Court politics through the list, laying down a marker in advance and committing not just to a certain kind of judge, or judges like scalia and thomas but naming names, it will be interesting to see if the president ial campaign try something similar. On this subject, does that approach the list, not without cost because on the one hand it elevates the issue and give certainty this a public they know what theyre getting with the president and Supreme Court nominees. On the other hand creating a list could create interesting Politics Around the list, to get above other people on the list, with the longterm future of Supreme Court lists. The downside is treat judges like legislation, certain outcomes, and what you are voting for is a. People who will vote a certain way. I saw senator holly apply this test from now on, and the democratic side, they will never vote for somebody not in favor of roe versus wade. You could say true judges like i dont know, a bundle of hopes with their outcomes, voting for people with a certain approach. On the downside, it is Donald Trumps unique nature. People might forget how important it was in his winning the nomination, 25 of people who voted for trump only voted for him because the Supreme Court issued, there was an open vacancy, he was in a dogfight with Todd Ted Cruz for the nomination, the solicitor general of texas was a constitutional conservative before, donald trump had to make that commitment to show that he could be trusted but it may not be the case you need any future candidates who have lengthy record for appointing judges and spoken unconstitutional issues. The short list for secretary of defense, i am not so sure that is a good idea because president s need that flexibility, dont want it you could turn it into a Coalition Government with interest in the party that we are not going to support you unless the secretary of education or something, something the framers would have worried about, a kind of Parliamentary Coalition that we see in western european countries. Host they expected the senate to play a role in federalist 76, silent check in the background. I suppose you want to president that should come to office, most of his big appointments, bring them to the senate with a real process to advise and consent and give those offices some legitimacy beyond that but something to be said for making clear to the voters what your administration will look like. Not just Vice President cheney as a running mate but colin powell likely to be secretary of state was no small thing for a president who didnt have any experience on the global stage but i digress. One of the challenges o